Fear Not Law Articles: VERGOS v. McNEAL PART II

VERGOS v

VERGOS v. McNEAL

Filed 1/23/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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RANDY VERGOS,

Plaintiff and Respondent,

JULIE McNEAL,

Defendant and Appellant.

C051469

(Super. Ct. No. PT021600)

STORY CONTINUED FROM PART Iâ€¦â€¦â€¦..

In denying the section 425.16 motion, the trial court in this case said plaintiff's third cause of action was based on McNeal's conduct, not the content of what she stated in any proceeding or in the exercise of the right to petition. We disagree. The gravamen of plaintiff's third cause of action is McNeal's communicative conduct in denying plaintiff's grievances. The hearing, processing, and deciding of the grievances (as alleged in the complaint) are meaningless without a communication of the adverse results. We need not address McNeal's argument that section 425.16 also applies to noncommunicative conduct.

The trial court cited San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees' Retirement Assn. (2004) 125 Cal.App.4th 343 (San Ramon). However, that case is not controlling. In San Ramon, a fire district sought mandamus relief after a county retirement board decided to increase contributions payable by the fire district and/or its employees. (Id. at p. 347.) The First Appellate District upheld the trial court's denial of an anti-SLAPP motion. The introduction to the opinion states: â€

Description	Under anti SLAPP statute, statements and conduct by public employee in denying plaintiff's administrative grievances are protected against civil rights action attacking her hearing, processing and decision of his claim where plaintiff presented no evidence that employee violated his rights in her capacity as hearing officer, and employee stated in her declaration that she did not harbor any unlawful prejudice against plaintiff and denied his grievances based on her review of the investigator's report, her belief it was adequate, her agreement with its conclusions, and absence of any reason for her to believe the investigator harbored an unlawful prejudice against plaintiff.
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